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Federal Report: President Obama Broke the Law with Bergdahl Prisoner Swap

The Government Accountability Office released a report this morning clearly stating that the administration violated two different laws in arranging for prisoners at Guantanamo to be exchanged for the release of Bowe Bergdahl. The story was picked up by the Washington Free Beacon.

A summary of the finding:

The Department of Defense (DOD) violated section 8111 of the Department of Defense Appropriations Act, 2014 when it transferred five individuals detained at Guantanamo Bay, Cuba, to the nation of Qatar without providing at least 30 days notice to certain congressional committees.

 

Section 8111 prohibits DOD from using appropriated funds to transfer any individuals detained at Guantanamo Bay unless the Secretary of Defense notifies certain congressional committees at least 30 days before the transfer. As a consequence of using its appropriations in a manner specifically prohibited by law, DOD also violated the Antideficiency Act.

Section 8111 of the Department of Defense Appropriations Act states that use of funds “appropriated or otherwise made available” may not be used to transfer a detainee from Gitmo to a foreign entity without 30-day advance notification.

In Bergdahl’s case, the DoD notified the relevant committees on the very day the transfer took place. The GAO reports that the DoD’s opinion was that this requirement did not apply and, furthermore, that the 8111 restrictions are unconstitutional. In other words, it doesn’t matter and even if it does, it shouldn’t. The GAO rejected both arguments and maintains that a violation occurred.

On the claim of unconstitutionality, the GAO said:

It is not our role or our practice to determine the constitutionality of duly enacted statutes,” the report says. “In our view, where legislation has been passed by Congress and signed by the President, thereby satisfying the bicameralism and presentment requirements in the Constitution, that legislation is entitled to a heavy presumption in favor of constitutionality.

The Antideficiency Act forbids incurring a financial obligation “in excess or in advance of amounts that are legally available.”

The GAO found that the DoD obligated “at least $988,400 in excess of available appropriations” and that the DoD should report this violation as required by law. This aspect of their finding was short and sweet: the administration spent money they shouldn’t have.

Overall conclusion: The Obama administration broke the law. Twice. The real question, of course, will be what happens next. Will the administration report on itself? How will it respond to the General Counsel’s findings?


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